ANN MARIA MATINO v. ROBERT LASKO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0536-11T4

ANN MARIA MATINO, EXECUTRIX OF

THE ESTATE OF ROSEMARIE

MATINO and ANN MARIA MATINO,

NANCY WILLIAMS AND THERESA

TRENDLER,

Plaintiffs-Appellants,

V.

ROBERT LASKO, CONSELINA LANDSCAPE

& TRUCKING CO., LLC, JOHN SMITH,

A & L HARPER TRUCKING CO.,

Defendants,

and

JOSEPH CARBONETTA

AND TIPTON TRUCKING CO., INC.,

Defendants-Respondents.

________________________________________

Argued March 20, 2012 Decided May 21, 2013

 

Before Judges Nugent and Maven.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0897-09.

 

Gary D. Ginsberg argued the cause for appellants (Ginsberg & O'Connor, P.C., attorneys; Mr. Ginsberg, on the brief).

 

Joseph P. McNulty argued the cause for respondents (Carroll, McNulty & Kull, LLC, attorneys (Mr. McNulty, of counsel and on the brief; Julie Zando-Dennis, on the brief).

PER CURIAM

Plaintiffs, Ann Maria Matino, Nancy Williams, and Theresa Trendler, appeal from the summary judgment that dismissed their complaint against defendants Joseph Carbonetta and Tipton Trucking Co., Inc. Plaintiffs' claims arose out of a traffic accident that resulted in the death of their mother, Rose Marie Matino. The accident occurred when a tractor-trailer driven by defendant John Smith collided with the rear of a dump truck driven by defendant Robert Lasko, which then crossed into the oncoming lane of traffic and crashed into Rose Marie Matino's Buick LeSabre. The Tipton truck driven by Carbonetta did not collide with any of the other vehicles, but plaintiffs allege that its sudden stop triggered the events that ultimately resulted in the collision between the dump truck and their mother's car. Having considered the summary judgment motion record in light of plaintiffs' arguments, we conclude that plaintiffs did not establish a prima facie case of negligence as to Carbonetta. Accordingly, we affirm.

I.

The summary judgment record discloses the following facts. The accident occurred just before noon on October 30, 2011, on Route 70 in Evesham Township. Route 70 at the accident scene is a straight, level, asphalt road with one westbound lane, one eastbound lane, and an eastbound right-turn lane that provides access to a shopping center and an intersecting street, Troth Road. The travelling lanes are separated by solid double lines. The collision between the trucks driven by Smith and Lasko occurred approximately 815 feet west of Route 70's intersection with Troth Road.

Carbonetta was driving a Tipton Trucking Co. flatbed truck in the eastbound lane, approaching the traffic light at Troth Road. Lasko was driving behind him in a 2006 Mack Dump Truck. Smith was driving behind Lasko in a 2000 Kenworth Tractor and semi-trailer. In the area of the right-hand turn lane for the shopping center and Troth Road, the tractor-trailer driven by Smith collided with the rear of the dump truck driven by Lasko. Immediately following that collision, Lasko's dump truck travelled across the double yellow line and crashed into Rose Marie Matino's Buick.1 The negligence of Smith and Lasko is not disputed on the record before us. The central issues are whether Carbonetta was negligent and, if so, whether his negligence was a proximate cause of the accident.

Neither Lasko nor Smith accused Carbonetta of stopping suddenly. According to Lasko, as he downshifted from sixth into fifth gear while coming out of a short curve, he saw the traffic light at Troth Road and began to apply his brakes. At the same time, he looked in his rearview mirror and saw smoke coming from the tractor-trailer. Lasko knew his truck was going "to get hit," but had no concern that the tractor-trailer was going to push him into a vehicle in front of him, because the vehicle in front of him "was too far down the road." Lasko testified that a car, not the flatbed truck driven by Carbonetta, was in front of him when the tractor-trailer rear-ended the dump truck he was driving. The car in front of him "didn't do anything sporatic[,] . . . he was slowing down, also."

Smith told police that he had been driving behind the dump truck driven by Lasko for a few miles and "had not noticed any brake lights activated on [the dump truck] immediately before the collision." Smith was unsure of the distance between the tractor-trailer he was driving and the dump truck. He "came up quick to the rear end of [the dump truck]," attempted to avoid colliding with the dump truck by steering to the right, but was unable to avoid the collision.

Carbonetta's version of the accident contradicted Lasko's version. Carbonetta testified during his deposition that Lasko had been tailgating him. Carbonetta looked into his rearview mirror "every five to ten seconds" because Lasko "was actually trying to see what was in front of [Carbonetta]." Lasko would "drift over . . . to see what was in front of [Carbonetta]." When Lasko drifted far enough over to see oncoming cars, or that Carbonetta "was leaving a safe cushion between [him] and the car in front, then [Lasko] would drift back. Then he would sneak back out to see, after that car went by." These "tailgating incidents occurred approximately eight times over ten minutes." Carbonetta testified that Lasko's last tailgating activity occurred "approximate[ly] five minutes before the impact occurred."

When asked whether he was distracted by Lasko's tailgating to the point that he did not know what was happening in front of him, Carbonetta responded "[y]es." He further explained:

You're sort of using double vision. Unless you're sitting in the driver's seat of the truck and see what you see in that mirror, you can almost, really without turning your head, see what's in the mirror and also keep[] an eye on what's in front of you.

Asked if he "always [kept] an eye on what was in front of [him]," Carbonetta responded, "[y]es."

In a recorded statement made seven months after the accident, Carbonetta said that there were five cars in front of him in the eastbound lane as they approached the traffic light at Troth Road. When the light turned red, his truck and the other cars "all sorta came to a sudden stop [and] I came to a stop without striking the vehicle in front of me and it was basically all well and fine there[.]" Carbonetta was concerned that Lasko might cause a rear-end collision with him because "the dump truck had jammed his brakes on real hard cause he sorta caught me at the last second there and he was in the process of veering over to the left on the double yellow . . . [because] he thought he was gonna strike the back of my vehicle[.]" After seeing the dump truck veer into the oncoming traffic lanes, Carbonetta moved his truck out of the way so that he did not get hit.

When deposed, Carbonetta also testified that he saw someone at the red light who appeared as though they were going to run the red light, then decided to stop. The following colloquy then occurred:

Q. You saw somebody at the red light who appeared that they were going to run the red light and then decided not to?

 

A. Yes.

 

Q. And did that cause you to come to a quick or sudden stop?

 

A. Not slamming on the brakes quick, but more of a sudden stop than I usually make.

 

Q. And there was sort of a chain reaction of sudden stops - -

 

A. Yes.

 

Q. - - because of what she did?

 

A. Yes.

 

. . . .

 

Q. And did that chain reaction contribute to the happening of this accident?

 

. . . .

 

A. I - - yes.

 

Jeffrey Sullivan, a witness, gave the following account of the accident during a municipal court hearing:2

MR. SULLIVAN: There was a line of traffic proceeding eastbound. It was a beautiful sunny day. As we approached the traffic light the traffic stopped. As I stopped I heard a noise behind me. As I looked in my rearview mirror I saw there was a box truck ahead of the dump truck. It, as it went to stop to avoid hitting the vehicle in front of it, pulled into the shoulder, and then I saw the dump truck. I didn t know that it was hit by a truck behind it, but I saw the large dump truck not stop. I saw it - - I didn t know that it was pushed from behind. I just saw that it went into the westbound lane . . . and struck the vehicle of these people's mother.

 

THE COURT: Okay. So you weren't watching in your rearview mirror to know whether or not the dump truck was stopped or not?

 

MR. SULLIVAN: Well, I could see in my rearview mirror.

 

THE COURT: But I'm saying at the time before it was striking her vehicle you weren't focused on the dump truck; is that correct?

 

MR. SULLIVAN: All I know is all I could see is that the box truck pulled over. When the box truck pulled over I could then see the dump truck and I could see it going into the westbound lane[.]

 

Two other witnesses, Erin Jones and Rose Marie Matino's daughter, plaintiff Nancy Williams, witnessed the accident. They both stated during municipal court proceedings that the light at Troth Road had turned green for Route 70 traffic shortly before the collision.3 Ms. Jones, who was driving behind Rose Marie Matino, said that the light at Troth Road had just turned green and she and the victim were moving forward, but the trucks in the eastbound lane remained stopped. According to Ms. Jones, from her perception, "[t]raffic was stopped and the tractor-trailer came up behind the dump truck and hit it."

Plaintiff Williams, who was also driving behind her mother, testified that as she and her mother approached and proceeded through the light at Troth Road the light remained green. She never observed the light change from red to green. As she travelled through the light, she saw eastbound traffic was also proceeding through the traffic light.

Plaintiffs' accident reconstruction expert stated in his report:

Lasko was traveling behind a truck semi-trailer driven by Joseph Carbonetta. Carbonetta testified that he stopped short ....

 

Steering to the shoulder of the road is an evasive action undertaken to avoid a collision. Stopping short may be caused by following too closely, inattentiveness, or vehicle defects.

 

Carbonetta made no allegation that his vehicle was defective. Carbonetta testified that Lasko's driving erratically, trying to get around him, and following at an unsafe distance made him nervous. That Carbonetta was nervous and paying this much attention to Lasko's driving represents a distraction to Carbonetta. Carbonetta was either following too closely or not paying attention to traffic ahead of him.

 

The Pennsylvania Commercial Drivers' Manual states:

 

"To be a safe driver you need to know what's going on all around your vehicle. Not looking properly is a major cause of accidents.

 

You need to look well ahead to make sure you have room to make these moves (stopping) safely."

 

Carbonetta was a Pennsylvania Licensed Commercial Driver, and should have been familiar with the Driver's Manual. Carbonetta's unsafe driving caused him to stop short, which in turn caused Lasko to stop short, causing Smith to rear end him. Carbonetta's unsafe driving was a cause of the collision.

 

As a result of their mother's death, plaintiffs filed a wrongful death and survival action, which was consolidated with various complaints filed by other parties. Following discovery and mediation, plaintiffs settled with all defendants except Carbonetta and Tipton Trucking. Carbonetta and Tipton Trucking filed a summary judgment motion, which the court granted.

In deciding the motion, the court concluded that "whether or not Carbonetta stopped short is not a genuine issue of material fact that would preclude summary judgment." The court explained that Carbonetta was able to safely stop his vehicle from colliding with any vehicle that might have been in front of him. Under those circumstances, the court concluded that "Carbonetta[,] the driver of the lead vehicle, was not responsible as a matter of law for the rear-end collision of the vehicles behind him, despite testimony suggesting that he stopped short for a red light." The court entered a confirming order from which the plaintiffs appeal.

 

 

II

Plaintiff contends the trial court erred by granting summary judgment to Carbonetta and Tipton. The summary judgment standard is set forth in Brill v. Guardian Life Ins. Co. of America, 142 N.J 520 (1995). A trial court must grant a summary judgment motion if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill, supra, 142 N.J. at 528-29.

A trial court must deny a summary judgment motion if the evidence, "when viewed in the light most favorable to the non-moving party," would "permit a rational factfinder to resolve the alleged disputed issue in" that party's favor. Id. at 540. Such evidence, however, must be more than "speculation" or "fanciful arguments," Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div.), certif. granted, 183 N.J. 592 (2005), appeal dismissed, Jan. 3, 2006; an "abstract doubt" about a material fact, Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009); or inadmissible hearsay. Robbins v. City of Jersey City, 23 N.J. 229, 240 (1957). We review the grant or denial of summary judgment de novo. Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003).

To establish a prima facie case that Carbonetta was negligent, plaintiffs were required to prove that he breached a duty of care that he owed to them, and that the breach of that duty was a proximate cause of their damages. See D'Alessandro v. Hartzel, 422 N.J. Super. 575, 579 (App. Div. 2011). Plaintiffs' primary contention is that Carbonetta "stopped suddenly." The assertion that a driver "stopped suddenly," without more, does not establish a prima facie case of negligence. Drivers are confronted daily with situations which require them to quickly apply their brakes. Examples of such situations include drivers disregarding stop signs, drivers suddenly changing lanes without warning, and children darting into streets. Drivers making proper observations, and maintaining a safe distance behind vehicles travelling in front of them, may have to apply their brakes quickly under a variety of circumstances.

This Supreme Court has recognized that a driver stopping suddenly is not, without more, evidence of negligence. In Campione v. Soden, Campione was a passenger in an automobile owned and operated by Linda Soden, who stopped at a red light. 150 N.J. 163, 168 (1997). It had been raining and the roads were wet. "Almost immediately after the light turned green, Soden's vehicle was rear-ended by a light-duty pickup truck[]" driven by Eric Jensen. Ibid. Jensen testified that Soden braked abruptly after a car in front of her stopped suddenly, and the police report of the accident stated that Soden told police a car in front of her had stopped short, "causing her to brake quickly." Ibid.

After the plaintiff presented his evidence at trial, the court found as a matter of law that Jensen was solely responsible for the accident and dismissed the plaintiff's claims against Soden. Id. at 171. On appeal, we reversed the trial court's "determination that . . . Soden bore no responsibility for the first rear-end collision." Id. at 188. The Supreme Court reversed. Citing its decision in Dolson v. Anastasia, 55 N.J. 2, 10 (1969) ("It is elementary that a following car in the same lane of traffic is obligated to maintain a reasonably safe distance behind the car ahead . . . ."), and Brill, supra, 142 N.J. at 540 ("If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact . . . ."), the Court held that "the trial court's entry of judgment in favor of Soden should have not been disturbed." Campione, supra, 150 N.J. at 189.

Here, plaintiffs argue that Sullivan's municipal court testimony and their engineering expert's opinion created a triable issue as to whether Carbonetta was negligent. We disagree. When considered in its entire context, Sullivan's testimony as to why Carbonetta stopped was speculative. As Sullivan stated, "[a]ll I know is all I could see is that the box truck pulled over. When the box truck pulled over I could then see the dump truck and I could see it going into the westbound lane . . . ." Sullivan's testimony about why Carbonetta pulled onto the shoulder was not based on first-hand observations. He did not see Carbonetta following the car in front of him too closely, and admitted as much when he conceded, in response to the municipal judge's question, that all he could see was that the box truck pulled over. He could not competently say why the box truck pulled over, and he offered no competent testimony from which a factfinder could have inferred that Carbonetta pulled over to avoid hitting the car ahead of him, rather than to avoid being hit from behind.

Plaintiffs' expert based his testimony on Sullivan's speculation about why Carbonetta "pulled into the shoulder." The expert construed Sullivan's testimony as evidence that Carbonetta stopped short, and then reasoned that "[s]topping short may be caused by following too closely, inattentiveness, or vehicle defects" (emphasis added). The expert ignored Carbonetta's testimony that he did not slam on his brakes, but rather made "more of a sudden stop than I usually make." The expert also ignored Carbonetta's testimony that five cars in front of him stopped suddenly when the traffic light at Troth Road turned red.

Additionally, the expert cited Carbonetta's testimony that Lasko's driving erratically made him nervous, and concluded that Carbonetta's "being nervous and paying this much attention to Lasko's driving represents a distraction to Carbonetta." The expert did not address Carbonetta's testimony that Lasko had stopped tailgating before the collision occurred, and did not address Lasko's testimony that his driving was not affected by the vehicle ahead of him. Despite failing to discuss those facts, the expert concluded that "Carbonetta was either following too closely or not paying attention to traffic ahead of him."

Even assuming the expert's conclusions about Carbonetta's driving were beyond the ken of a lay person a tenuous proposition based on the facts they did not create a genuine issue of fact that required the jury to decide the issue of Carbonetta's negligence. "A party cannot defeat a motion for summary judgment merely by submitting an expert's report in his or her favor." Brill, supra, 142 N.J. at 544. "An expert's opinion of no negligence based on erroneous or nonexistent facts is worthless." Id. at 543-44. When an expert's conclusion regarding liability "is based on a factually inaccurate and an unjustifiable assertion, . . . [the] report does not create a genuine issue of material fact precluding the grant of summary judgment." Id. at 544.

Here, Carbonetta was able to stop his truck without colliding with the car ahead of him. Plaintiffs produced no competent evidence that Carbonetta failed to make proper observations, followed too closely, or drove at an excessive speed. We agree entirely with the trial court's determination that plaintiffs' proofs presented no genuine issue for trial.

Affirmed.

 

 

1 Smith retained an accident reconstruction expert who concluded in his report that "[t]he continued forward movement of the Lasko vehicle after its rotation resulting from the Smith impact was not caused by collision forces from the Smith impact."

2 The parties have not provided a complete transcript of the municipal court hearing. Smith and Lasko were issued traffic summonses. Municipal court proceedings presumably concerned those summonses.

3 The statements made by Jones and Williams in municipal court may not have been sworn testimony. The portions of the municipal court transcript provided by the parties suggest that Jones and Williams made statements to the court during a guilty plea proceeding.